Social Media Use During a Divorce or Custody Case

The Platforms

When you hear the phrase “social media,” the platforms that often come to mind are Facebook, Twitter, YouTube, Snapchat, and Instagram, but it is important to remember that there are many additional platforms that could feature information about you that could be relevant to your divorce. Have you shared your professional history or professional updates on LinkedIn, left a review on Yelp or TripAdvisor, or posted a question or answer on a discussion board like Reddit or Quora? Have you signed up for Match.com, Bumble, Tinder, or any of the ever-multiplying dating websites and applications?

Every platform on this limited list could contain easily accessible information that could be relevant to your case, including, but certainly not limited to, statements you have published, your location on certain dates, evidence of your spending and lifestyle, and your relationship to relevant third parties. In the divorce and custody context, you should expect that all of this information will be accessed and reviewed by the opposing party’s counsel.

Many users are unaware of the somewhat unnerving amount of data that these platforms compile about the user. By way of example, Facebook allows you to download your account “archive,” and even a brief review of that archive quickly illuminates just how much personal information the platform permanently stores, including, but not limited to, every post you ever published (including the metadata for photographs); the location of your logins (essentially a location tracker for an active user); the content, dates, and times of all sent and received private messages; and the history of all friend requests initiated or received (whether or not they were accepted).

Users should keep themselves apprised of the personal data that their platforms of choice retain, especially if you are a party in a family law case.

Accessibility

As a party to a divorce or custody action, you are likely to be prohibited from editing or deleting previously published social media content as doing so can lead to consequences such a sanctions for destroying potentially relevant evidence. You should expect that any prior content, as well as all future content, can and will be scrutinized by the opposing party’s counsel. Furthermore, it is important to keep in mind that you cannot rely on the platform’s privacy settings as they can be confusing and subject to change, and the other party may have the ability to request or access this information through discovery, subpoena, or other means. It is all too common during these proceedings that one party can still gain access to the other party’s accounts through the account of a mutual friend or even fake duplicate profiles of friends.

The bottom line is that you need to assume that all of your information could be accessible if sought by the other party. That said, there are precautionary measures you should take if you are part of an active family law case. First, you should sign out of your accounts on all devices (this usually is a setting for most platforms) and change your passwords for all social media sites. You also should be sure to unlink your accounts and email or messaging applications from all family or shared devices. Although not technically “social media,” I cannot tell you how many clients have had issues stemming from the fact that they forgot to unlink their iMessage or Facetime accounts from a family iPad or child’s phone, so it is imperative that you consider what accounts or communication services might still be active on shared devices. Finally, it is even advisable that you open a new email account for the pendency of your family law matter to ensure that your account cannot be accessed by the opposing party.

Even if you refrain from publishing any new content during your family law case, social media also can be problematic in that you cannot always control the content published by third parties. It is all too common for clients to say, “I don’t even use social media” or “don’t worry; my profile is private,” but they often forget that photographs, comments, or other third-party content posted by friends or family could hurt them in their family law case. If a mutual friend posts a photograph of you consuming alcohol during your custodial time or a group of people that includes you and a new significant other, you should expect that photograph to come to the attention of the opposing party and his or her attorney, which they could attempt to use as evidence in your case.

In sum, if you are going through a divorce or custody action, you need to be very mindful of the information that you (and others) publish about yourself or your case, and the best practice may be to refrain from using social media altogether and to remind others not to interact with you on those platforms for the pendency of the litigation.

The Consequences

Evidence in Your Case

During the pendency of a family law case, it is not uncommon for individuals to turn to social media for support from the community or to comment on the status of their cases or even to disparage the other party. If you are going through a divorce or custody dispute, it is critical that you think twice before posting any content to social media as you may not be aware of the ramifications of the information you are sharing.

By way of example, photographs of travel, fine dining, designer clothes and accessories, or other luxury goods, even if taken out of context, could have an impact on issues such as support, alimony, and asset distribution. Your location data, communication with a third party, or dating application activity could provide evidence relating to infidelity, separation, or cohabitation with a third party (which could have ramifications on a claim for alimony, depending on your jurisdiction). Finally, there is a plethora of information that might be relevant in a custody action. Relevant content includes, but is not limited to, photographs of you in circumstances where you or others are drinking, smoking, or participating in other behavior that could be perceived as risky; commentary disparaging the other parent or a third party; or location data showing you were not where you were supposed to be during your custodial time.

As tempting as it can be to turn to social media during a family law case, it is important to limit or stop using these platforms during a divorce or custody action to limit the dissemination of information that could serve as harmful evidence in your case.

Loss of Privilege

Individuals also need to be aware that information shared in writing or posted online could lead to the loss or diminishment of attorney-client privilege if that information relates to the case. While it may seem like common sense, it is important that you refrain from publishing facts or commentary about your case or share any relevant legal documents on social media. The disclosure of this information places you at risk of losing the protection of attorney-client privilege, and that information may become accessible to the opposing party and his or her attorney upon request.

Civil and Criminal Issues

As a participant in a family law case, you also should be aware of potential civil or criminal consequences of social media use during your case. Tensions can understandably run high during a family law case, but it is imperative that these frustrations not be released on social media due to the risks involved.

With password sharing or saving being relatively common, it can be tempting to log into a family computer or the other party’s email or social media account in an effort to collect relevant information about your case, but you should refrain from doing so unless you have discussed this with your attorney first. Accessing and disseminating otherwise-private information without the consent of the opposing party could provide grounds for a civil claim against you for invasion of privacy or wiretapping, depending on your jurisdiction. Furthermore, these actions also could violate criminal statutes in your jurisdiction. Gathering information in violation of federal or state law also could render the information inadmissible in your case, so you risk losing the ability to use the potentially relevant information while subjecting yourself to civil or even criminal penalties. Some or all of the same information may be accessible through formal discovery, subpoena, or other legal means, so individuals would be better served to discuss this with their attorneys before attempting to gather the information themselves.

It also is common practice for authorities to use social media to build criminal cases. By way of example, police can use an individual’s social media posts that disparage the other party as a component of a criminal harassment or stalking complaint. Most states also have enacted legislation making it a crime to publish “revenge porn.” While common sense should prevent individuals from posting intimate photographs of the other party online, this behavior is now likely to put you at risk of criminal repercussions in addition to being used against you in your family law case.

Unrealistic Expectations

In addition to the potentially harmful ramifications of social media use by litigants outlined above, communication about your family law case has the potential to create unrealistic expectations or misinformation about the applicable law, legal process, or outcome of your case. It is all too common that third parties who also have been through a divorce or custody action will discuss aspects or outcomes in their cases that (1) could have no relevance to your case and (2) might generate skewed or unrealistic expectations about the outcome of your case. Keep in mind that these statements from third parties (even though they are often intended to provide support) might not be entirely truthful, often lack all of the relevant context, and may refer to law or practices from other jurisdictions that differ from yours. Unrealistic expectations about your own case can lead to disappointment during an already-difficult process, and they can even be a barrier to reaching a resolution in your matter.

Best Practices

The potential pitfalls of social media use during a family law case can seem overwhelming, but individuals can manage some of the potential risks by adopting some of the best practices relating to the issues discussed above, as follows:

Dos

• Be conscious of what you post on social media or even cease using social platforms altogether during your divorce or custody action.
• Change your passwords for all social media accounts.
• Unlink your accounts from all your devices.
• Instruct family, friends, and other third parties to limit what they post and comment on your page or about you.
• Discuss the information-gathering process with your attorney prior to attempting to gather it yourself from the opposing party’s accounts or devices.

Don’ts

• Post harmful content (especially in circumstances with drinking or smoking, material objects, or luxury goods).
• Post content about the opposing party or about the proceedings.
• Disparage others.
• Post content with a significant other.
• Rely on your social media privacy settings.